Souter v T & T Building Contractors CC (A532/09) [2011] ZAWCHC 220 (11 May 2011)

Souter v T & T Building Contractors CC (A532/09) [2011] ZAWCHC 220 (11 May 2011)

The court held that the JBCC contract contained an entrenchment clause requiring any variation to be in writing. The acceptance and payment of interim certificates issued by the quantity surveyor did not amount to a written variation of the contract. Only the agent, Mark Bell Architects, was authorised to issue payment certificates, and there was no evidence of a valid delegation of this authority. The final payment certificate issued by the quantity surveyor was therefore invalid. As a result, the dispute regarding the validity of the payment certificate was subject to arbitration under Clause 18 of the JBCC agreement. The court further found that the costs order on an attorney and...

Citation
[2011] ZAWCHC 220
Parties
Appellant: Ian D Souter; Respondent: T & T Building Contractors CC
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 May 2011
Case Number
A532/09
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Special Plea and Costs Order
Outcome
Appeal upheld. The order of the court a quo is set aside and replaced.
Judges
Henney, Dlodlo
Legal Topics
Building Contracts, Arbitration Clauses, Liquid Documents, Variation of Contract, Costs Awards
Commercial and Corporate Civil Procedure Building Contracts Arbitration Clauses Liquid Documents Variation of Contract Costs Awards

Case Brief

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Parties

Ian D Souter

Appellant

T & T Building Contractors CC

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Special Plea and Costs Order

Legal Issues

  1. 1 Whether acceptance of previous payment certificates issued by the quantity surveyor constituted a variation of the contract by estoppel.
  2. 2 Whether the agent could delegate authority to the quantity surveyor to issue payment certificates under the JBCC agreement.
  3. 3 Whether the claim was based on a valid payment certificate that could be regarded as a liquid document for obtaining a court order.

Ratio Decidendi

The court held that the JBCC contract contained an entrenchment clause requiring any variation to be in writing. The acceptance and payment of interim certificates issued by the quantity surveyor did not amount to a written variation of the contract. Only the agent, Mark Bell Architects, was authorised to issue payment certificates, and there was no evidence of a valid delegation of this authority. The final payment certificate issued by the quantity surveyor was therefore invalid. As a result, the dispute regarding the validity of the payment certificate was subject to arbitration under Clause 18 of the JBCC agreement. The court further found that the costs order on an attorney and...

Court Disposition

Appeal upheld. The order of the court a quo is set aside and replaced.

Orders

  • The Special Plea of the Defendant is upheld with costs.
  • The wasted costs awarded to the plaintiff in respect of the postponement on 22 July 2008 on an attorney and client basis is replaced with an award on a party and party basis.